Andrew Tait's article was published by and appeared in Online Gaming Lawyer, March 2017

As widely reported in the national press, a recent FA Cup tie saw Wayne Shaw, at the time a reserve goalkeeper for Sutton United, eat a pie on the touchline during his team’s match against Arsenal FC. The incident has led to both Shaw and operator Sun Bets being investigated by the Football Association and the British Gambling Commission after it emerged that Sun Bets was offering 8/1 odds that Shaw would eat a pie during the match, and Shaw admitting that he was aware of the specific bet being offered. The investigation will look at matters of betting integrity involved in the incident, and serves as a test case for the area of novelty bets, which has previously been the focus of regulatory attention: last year the Commission warned operators of the risks of offering bets in novelty markets. Andrew Tait of Gordon Dadds discusses the case and the possible consequences for Sun Bets, and the lessons to be drawn for operators.

The Football Association and the British Gambling Commission are investigating the incident where Wayne Shaw, the colourful 20 stone Sutton United goalkeeper, ate a pie during the last five minutes of the 5th round FA Cup tie against Arsenal on 20 February 2017, an act that he subsequently admitted was in response to a bet offered by Sun Bets at 8/1 odds that he would indeed eat a pie during the match. Whilst he confirmed that he was aware that some of the fans had placed bets on the event, he stated that he was not himself involved in these bets. Wayne Shaw resigned from Sutton United soon after the investigation was announced.

The investigation will most likely follow the Gambling Commission’s betting integrity decision making framework (published in October 2013), which will involve both Sun Bets as the licensed operator and the FA, as the relevant sport’s governing body, both providing information to a group known as the Sports Body Investigation Unit (‘SBIU’), who will: (i) assess if there is firstly a criminal case to answer based on the evidence provided and if not, which is most likely given the high burden of proof; (ii) assess if there has been a potential breach of sports rules, and if so then the matter will be referred to the FA for investigation and possible action. This cooperation system ensures that an efficient streamlined process is in place, where appropriate sanctions are levied, forming deterrents against future breaches.

Focusing firstly on the potential breach of FA’s Rule E8 on betting abuse by Wayne Shaw, the key provisions on betting stipulate that: ‘[…] A Participant shall not bet, either directly or indirectly, or instruct, permit, cause or enable any person to bet on the result, progress, conduct or any other aspect of, or occurrence in, a football match or competition.’

The wording of the Rule may therefore be deemed wide enough to cover novelty bets, such as eating a pie, as these may be considered to be a ‘conduct or any other aspect of’ or ‘occurrence’ during the match.

The burden of proof will be on the FA to then establish if Wayne Shaw was directly or indirectly involved in placing bets on his ‘pie fest.’ In another match-fixing case investigated by the FA against Nicholas Bunyard, the Manager of Frome, the FA went to some lengths to examine mobile phone records, interview witnesses and carry out other forensic-like investigations to determine if there was a case to answer. No doubt similar treatment will be conducted here to discern if Wayne Shaw did in fact tip off his accomplices to place bets on his pie eating.

Shaw was very open about his intention to eat the pie once he became aware of the Sun Bet 8/1 odds. Indeed he was quoted in the Guardian newspaper as saying: “A few of the lads said to me earlier on: ‘What is going on with the 8-1 about eating a pie?’ I said: ‘I don’t know, I’ve eaten nothing all day, so I might give it a go later on.’”

Sun Bets, as mentioned above, will via the SBIU need to review the betting patterns and customers placing winning bets, to determine if they were known associates of Shaw and the extent of such winnings.

The fact that Shaw resigned (or was forced to do so) may have pre-empted an interim suspension order against him by the FA’s Regulatory Commission. The FA has a range of sanctions available to it, mainly focusing on suspension from playing for a period of time using pre-existing guidance. This guidance seems to be limited to bets placed on the team to win (suspension of zero to six months) and the team to lose (six months suspension to life), both taking into account a number of acknowledged relevant factors, such as the size of bets and impact on the game’s integrity. There does not yet seem to be guidance around novelty bets, so this case may create a precedent. In addition, fines may also be imposed, which at a minimum cover the benefits of any winning bet linked to the conduct.

The FA investigation will of course centre on Shaw himself but Sun Bets also faces serious repercussions from this event. The Commission published a warning in June 2016 aimed at betting operators dealing in novelty markets. This publication pointed out the dangers of basing betting around events whose outcome may already be known, such as the winning of the Great British Bake Off, given that they may be recorded in advance of public broadcast. To base betting around such novelty events may in itself open up the opportunity for misuse of insider information leading to grave integrity concerns. Operators need to ensure that they manage risks of such potential misuse as part of their own licensing requirements.

These requirements are clear and apply both on the level of Sun Bets, the operator and betting entity itself and those senior managers who hold a personal management licence (‘PML’) in connection with the operating licence, to ensure that they: conduct their business with integrity; organise and control their affairs responsibly and effectively; and have adequate systems and controls to keep gambling fair and safe.

Furthermore when it comes to betting integrity the primary responsibility of licensed operators is to identify and mitigate the threats to breach of these specific licensing conditions, as emphasised by the Gambling Commission in its guidelines on protecting betting integrity, published in October 2013. These same guidelines specifically point out that though they are primarily concerned with sports betting, they also cover ‘betting on non-sporting events; for example the winners of film awards.’

As part of its betting integrity obligation, Sun Bets needs to specifically ensure that the bets offered by it are made in an open and fair manner for all, with all the necessary controls in place to ensure that the outcome of the event cannot be influenced by those with the intention of benefiting through betting on it. The fact that the bet was publicised throughout the match means that it could have easily come to the attention of Shaw and thereby potentially encouraged him to benefit from it for himself or his friends. Indeed in the same Guardian article Shaw is quoted as saying: “Sun Bets had us at 8-1 to eat a pie. I thought I would give them a bit of banter and let’s do it. All the subs were on and we were 2-0 down. I went and got it at half time from the kitchen, I had it all prepared and ready to go.”

He was therefore in a position where he could plan his influence on the outcome of the event, namely to eat the pie at the most opportune moment during the match (i.e. when all the subs were on and he was no longer able to play). During the half time session he could easily have notified others of his intention or his actions themselves could have been observable by a wider group thereby affecting the integrity of the bet. Therefore the seeming lack of controls by Sun Bets may have opened the bet to abuse and as such may be held by the Gambling Commission as contrary to betting integrity requirements, irrespective of whether the actual abuse occurred. As such Sun Bets faces the danger of a licence review, both of the operating licence and individual PML holders who may be held accountable for any failings.

If the Gambling Commission decides to conduct this review then there are a number of outcomes, covering: no further action; or advice to Sun Bets on its conduct; or ultimately an exercise of the Commission’s powers under Section 117 of the Gambling Act to:

give a warning;

add, remove or vary a

condition to the licence;

suspend a licence;

revoke a licence; or

impose a financial penalty.

Given that the Gambling Commission has previously issued warnings against lax controls when it comes to novelty bets and with the apparent intrinsic vulnerability of this bet, it will be interesting to see the outcome.

So to conclude, this investigation will constitute a test case on novelty betting and as such may provide further clarity on expected levels of controls needed to ensure that the outcome of an event cannot be influenced or known prior to the closing of the bet. What is more bizarre in this situation, in my opinion, is that Sun Bets had nothing to gain but all to lose by exposing itself to (potential) betting abuse, where more stringent controls would have mitigated its own exposure, complied with its licence obligations whilst at the same time still gaining all the publicity it intended around this event.

Contact the Author

I have over 20 years of experience in betting & gaming, regulation & compliance, intellectual property and commercial contracts. Prior to joining Gordon Dadds regulatory solutions team in 2017, I was General Counsel & Chief Compliance Officer at Mansion Group for 10 years.
My key specialisms are gambling law and regulation, compliance, governance and risk management, AML policies and procedures, IT contracts and technology licensing, entertainment and media contracts and copyright licensing, sports sponsorship agreements, ecommerce and internet law.
I am a member of IMGL (International Masters of Gaming Law), GBGA (Gibraltar Betting & Gaming Association) and ICA (International Compliance Association).